Today, the UK Government presented its new Bill of Rights before Parliament, claiming that it will “restore a proper balance between the rights of individuals, personal responsibility and the wider public interest”. In reality, the new Bill will undermine the universality of all human rights and weaken the ability of courts to give effect to protection of fundamental human rights, including freedom of expression. It will expand state power and hamper efforts to hold the Government to account, joining other legislative measures – such as the Judicial Review and Courts Act 2022 – that have reduced the ability to challenge government overreach.
The Bill is set to replace the Human Rights Act, which has protected human rights and the freedom of expression of people living in the UK for over twenty years.
The Government claims that replacing the Human Rights Act with a new Bill of Rights will strengthen freedom of expression. As human rights organisations that promote and defend the right to freedom of expression worldwide, we unequivocally reject this false narrative. Freedom of expression is too important to be used as cover for weakening the protection of human rights. On the contrary, as detailed in our joint consultation response, the Human Rights Act has bolstered free expression in the UK in a number of areas: strengthened defamation law; enhanced protection of journalistic sources and material; strengthened protection of the right to protest; and restricted perception-based recording of non-crime incidents, among other things.
ARTICLE 19, Index on Censorship and English PEN believe that if the Government is serious about its purported goal to strengthen freedom of expression in the UK, it should instead focus its attention on reforming a number of problematic laws and legislative proposals it has brought forward, including the National Security Bill, the Online Safety Bill, theHigher Education (Freedom of Speech) Bill, the Public Order Bill, and the Police, Crime, Sentencing and Courts Act.
Deputy Prime Minister and Justice Secretary Dominic Raab. Photo: Joe Giddens/PA Wire/PA Images
We urge the Government to abandon any proposal that would replace or weaken the Human Rights Act in any way. Moreover, it must follow the normal procedures for introducing new law – particularly a bill that could have such sweeping repercussions – and allow for proper, thorough democratic scrutiny of the bill. Rushing through such legislation could put the protection of human rights of the people in the UK at risk and fail to offer the levels of protection to which they are entitled, and which the Human Rights Act has already enshrined in law. One of the justifications for the Bill of Rights is to give greater weight to the views of elected lawmakers. By reducing the opportunity for these same lawmakers to scrutinise the Bill, it demonstrates the hollow commitment to democracy and the rule of law that underpins this Bill.
In the letter to Justice Secretary, Dominic Raab, this month, our organisations were among a coalition of 150 organisations from across civil society that called on the Government to provide pre-legislative scrutiny of the proposed Bill of Rights. We warned that the proposal to repeal and replace the Human Rights Act would be a significant constitutional reform, which requires careful and robust consideration. The rights of individuals could be compromised if such a process was hurried.
Prime Minister Boris Johnson samples an Isle of Harris gin. Photo: Justin Tallis/PA Wire/PA Images
This week was election week in the UK and, as a former parliamentarian, you’d expect me to be writing about the joy of being able to express ourselves at the ballot box and the vital importance of democratic values when they seem so under attack at the moment in too many places to mention.
I love elections, I love the debate, I love speaking to people on their doorsteps and there is nothing like a successful election count for your party. I cherish the fact that I am lucky enough to live in a democracy, that typically my human rights are protected because my fellow citizens also believe that democracy is something to be protected. But voting is a means to an end – it allows us all to hold our politicians to account and to ensure that our core values are reflected in our government. This only works if you believe that your democratically elected government is going to stick to the rules and it’s that that I have been reflecting on for the last couple of weeks.
There are some conversations that keep coming back to you. That spark debate and lead you to question the status quo. Last month, I had a series of meetings where there was a recurring theme that did just that.
International norms and the rule of law, which underpin both our democratic states and our world order, are only relevant if state actors recognise them and that culturally we all acknowledge their necessity.
The moral authority of democratic countries is dependent on how they choose to apply the rule of law – both domestically and internationally. On whether they are prepared to defend core democratic values, even when inconvenient, on a national and international stage. It’s the application of these norms and rules which empower democratic states to challenge others when they break them. And the recurring message from my meetings was that there was no longer an acceptance that democratic states were prepared to uphold the rule of law – if it didn’t suit them. And therefore, we are losing our moral authority to intervene when others break the law.
Poland is being fined one million euros a day by the European Court of Justice for undermining its domestic judiciary. Rather than comply with the ruling, Poland has been happy to let the fine mount up – a proportion of its EU finding withheld to pay for it.
The European Commission is also cutting funding to Hungary for eroding legal standards in the EU.
The British Prime Minister has been fined for breaching his own Covid-19 regulations and, pre-pandemic, was found to have unlawfully suspended Parliament.
In the US we saw incitement by leading politicians to undermine a smooth transition of power after the last presidential election.
This would be dangerous at any time, but right now when Russia and China are both attempting to leverage their power and influence, invade and threaten their neighbours we have never needed to uphold our international norms more.
The leaders of our democratic nation states speak with a level of moral authority on a global stage because their voice is our voice, because they are seen to uphold our core values – and they can therefore challenge other world leaders when they cross the line. If our current global order is to survive it’s therefore imperative that our leaders uphold the law – whether it suits them or not.
The rule of law is the basis of the campaigns that Index runs. Our work is framed by Article 10 of the European Convention on Human Rights – that everyone has the right to freedom of expression. We demand that national states uphold the values espoused by the Universal Declaration of Human Rights. If our leaders aren’t upholding these values, then it’s not just their voices that are weakened but ours too.
My fear is that when international norms aren’t followed – when our leaders opt in and opt out of laws and norms they don’t like – then repressive regimes thrive and their citizens are the ones that suffer.
So, this is really a plea to all of us who are lucky enough to live in democratic societies – hold your leaders to account and make sure that they comply with the law – so that we all have the moral authority to hold the tyrants’ feet to the fire.
Retaining data is the reflex of a functioning bureaucracy. What is stored, how it is stored, and when it is disseminated, poses the great trinity of management. These principles lurk, ostensibly at least, under an umbrella of privacy. The European Union puts much stake in Article 8 of the European Convention on Human Rights, stressing the values of privacy that covers home, family and correspondence. But there are also wide qualifications – interferences are warranted in the interest of national security and public safety, allowing Member States, and the EU, a degree of room to gnaw away at privacy rights.
That entitlement to privacy has gradually diminished in favour of the “security” limb of Article 8. The surveillance narrative is shaping privacy as a necessarily circumscribed right. The realm of monitoring and surveillance is being extended. Technologies have proliferated; laws have remained, if not stagnant, then ineffective.
Unfortunately for those occasionally oblivious drafters of rules in Brussels, the judges of the Court of Justice of the EU did not take kindly to the Data Retention Directive, which requires telecommunications and internet providers to retain traffic and location data. That is not all – the directive itself also retains data identifying the user or subscriber, a true stab against privacy proponents keen on principles of anonymising users.
The objective of the DRD, like so many matters concerned with bureaucratic ordering, is procedural: to harmonise regimes of data retention across various member states. More specifically, Directive 2006/24/EC of the European Parliament and of the Council of March 15 2006 deals with “retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks”.
Other courts have expressed concern with the directive, which propelled the hearings to the ECJ. These arose from separate complaints in Ireland and Austria over measures taken by citizens and parties against the authorities. The Irish case began with a challenge by Digital Rights Ireland in 2006. The Austrian legal challenge was pushed by the Kärntner Landesregierung (Government of the Province of Carinthia) and numerous other concerned parties to annul the local legislation incorporating the directive into Austrian law.
The Constitutional Court of Austria and the High Court of Ireland shook their judicial fingers with rigour against it – the judges were not pleased. The disquiet continued to their brethren on the ECJ, which proceeded to make its stance on the scope of the retention law clear by declaring it invalid. EU officials should have seen it coming – in December last year, the Advocate General of the ECJ was already of the opinion that the DRD constituted “a serious interference with the privacy of those individuals” and a “permanent threat throughout the data retention period to the right of citizens of the Union to confidentiality in their private lives.”
The defensive stance taken by the authorities is so old it is gathering dust. Technology changes, but government rationales never do. Invariably, it is two pronged. The ever pressing concerns of security forms the first. The second: that such behaviour does not violate privacy – at least disproportionately. You will find these principles operating in tandem in each defence on the part of authorities keen to justify extensive data retention. Such intrusive measures have as their object the gathering of information, rather than the gathering of useful data. The usefulness is almost never evaluated as a criterion of extending the law. Instinct, not evidence, is what counts.
The rationale of the first premise is simple enough: information, or data, is needed to fight the shady forces of crime and terrorism. Better data retention practices equates to more solid defence against threats to public security. The ECJ acknowledged the reason as cogent enough – that data retention “genuinely satisfies an objective of general interest, namely, the fight against serious crime and, ultimately, serious security.” The authorities were also keen to emphasise that such a regime of retention was not “such as to adversely affect the essence of the fundamental rights to respect for private life and to the protection of private data.”
In dismissing the main arguments of the authorities, the points of the court are clear. In retaining the data, it is possible to “know the identity of the person with whom a subscriber or registered user has communicated and by what means”. Identification of the time of the communication and place form which that communication took place is also possible. Finally, the “frequency of the communications of the subscriber or registered user with certain persons during a given period” is also disclosed. Taken as a whole set, these composites provide “very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented.” Former Stasi employees would be swooning.
The judgment provides a relentless battering of a directive that should never left the drafter’s desk. “The Court takes the view that, by requiring retention of those data and by allowing competent national authorities to access those data, the directive interfered in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data.”
The laws of privacy tend to focus on specificity and limits. If there is to be interference, it should be proportionate. The directive had failed at the most vital hurdle – if privacy is to be interfered with, do so in even measure with minimal interference. The DRD had, in effect “exceeded the limits imposed by compliance with the principle of proportionality.” The decision is unlikely to kill off regimes of massive data retention – it will simply have to make those favouring surveillance over privacy more cunning.